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Motor Vehicle Cases

Referring to the discretion a trial judge has over allowing the cross examination of the technician who has signed a blood alcohol certificate:

"(T)here must be some basis for the exercise of the discretion and this can be found in the evidence and can be found in the law or can be met by putting forward evidence on a voir dire and, as I say, if there is any slightest suspicion found by these means that the certificate is at all questionable, then the leave certainly should be given."

R. v. KENNEDY (1972) 7 CCC (2d) 42

The defense of necessity is available in strict liability offences such as speeding (see also R. v. Harper below).

R. v. SAULT STE. MARIE (1978) 2 SCR 1299

There are three kinds of offences in Canada: mens rea offences (where the prosecution must prove some kind of state of mind on the part of the accused. These include traditional criminal offences and usually includes words such as 'wilfully", "with intent" or knowingly".); strict liability offences (no need to prove state of mind. Conviction can follow upon mere proof of offence but accused is allowed to rebut with evidence of "reasonable care". Regulatory offences are prima faciestrict liability offences); and absolute liability offences (where "it is not open to the accused to exculpate himself by showing that he was free of fault." Here, the law must be clear that guilt follows "proof merely of the prescribed act." Other considerations in determining if an offence is one of absolute liability include "the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used").

R. v. ANDERSON (1978) 5 WWR 572

The trial judge refused leave to cross-examine the technician who had signed the blood alcohol certificate. This decision was appealed and was overruled. The request was not frivolous; the trial judge should have granted leave since the ultimate validity of the request could only be determined during the cross-examination of the technician.

R. v. FAULKNER (1979) 4 MVR 87

When certificates tendered as evidence by the Crown are to be challenged by the defence, such that the defence wishes to cross-examine the technician who signed the certificates, application must be made to the trial judge for the exercise of his or her discretion. Certificates were designed to eliminate the need for technicians direct evidence in criminal trials. Quoting from McCulloch (see above), the appeal court said the trial judge should compel the presence of the technician who signed the certificates if there is "the slightest suspicion ... that the certificate is at all questionable." Some basis, in law or on the evidence, has to be suggested by the defence.

R. v. CRAWFORD (1979) 4 MVR 82 (BC Supreme Court)

The decision of the trial judge to disallow leave to cross examine the technician who signed the blood alcohol content certificate was upheld because it was not arbitrary and there were alternate means for the defence to introduce evidence on the suspicion that the blood alcohol samples may have spoiled (eg. calling the technician as a defence witness or introducing his own expert evidence). The questions to be resolved on these appeals are whether the accused has been denied a fair trial due to the exercise of discretion on a wrong principle or frivolously.

R. v. O'REILLY (1979) 3 MVR 228

Police officers operating photo radar devices need not be knowledgeable on the electronics of the devices; as long as they have training in its operation. There must also be evidence that the device was tested "at the time in question." The conviction of speeding was quashed because there was no evidence "that the tests conducted by the constable were approved tests for that particular radar set. This evidence could have been given by the operator from knowledge which he acquired in his training and experience."

R. v. WALKER (1979) 48 CCC (2d) 126

Quoting from Mortgentaler v. The Queen, [1976] 1 SCR 616, this case confirmed that the defense of necessity is available against offences resulting from provincial statutes (see also Perka v. R. below).

HINES v. R (1979) 5 MVR 231 (NS appeal division)

A spelling error in the blood alcohol certificate did not justify granting leave to cross examine the technician because it was purely typographical and could not have misled the appellant in any way.

R. v. ARBON (1980) 4 MVR 210

The Ontario Highway Traffic Act was not clear on the creation of a presumption in "leaving the scene of an accident" case. The court then refused to allow the presumption because the Act "is a penal statute whether it be criminal or quasi-criminal. The courts in interpreting a criminal or quasi-criminal rule of law must give it strict interpretation by virtue of the fact that it is a penal statute."

GIFFIN v. R. (1980) 8 MVR 313 (NS)

A court may take judicial notice of the functioning of a radar device.

R. v. HIGGINS (1981) 10 MVR 157 (NS Supreme Court)

This analysis of a section of the Nova Scotian Motor Vehicle Actusing the R. v. Sault Ste. Marie decision (see above) led to the conclusion that under the specific section of the provincial Act, failing to obey traffic signs, was a strict liability offence for which "proof of the doing of the prohibited act would create a prima facie case, which, if not rebutted would carry conviction."

R. v. FORSYTHE (1980) 54 CCC (2d) 44

The defence is free to subpoena the technician who signed the blood alcohol content certificate rather than requesting leave to cross examine under the Criminal Code. Except that in proceeding in this manner, the technician becomes the defences witness and the evidence would then bind the defence.

R. v. NAUGLER (1981) 14 MVR 9 (NS Supreme Court)

Applying Sault Ste. Marie, Motor Vehicle Act violations are prima facie strict liability offences but that the speeding offence under the Nova Scotia Act was one of absolute liability as certain defenses had been removed; the "legislature has made it clear that guilt would follow proof merely of the prescribed act."

R. v. PARSONS (1981) 11 MVR 38 (NS)

The respondent gave credible evidence that his accelerator got stuck. Even where an offense was one of absolute liability, those general defenses that relate to the volitional elements of a crime (eg. infancy, insanity, necessity, compulsion and duress) are still available. The defendant can prove "that his driving at the speed in question was involuntary in the sense that it was not of his volition but of an extraneous factor, not subject to his control nor caused by his negligence."

R. v. RAMUSSEN (1981) 13 MVR 138 (BC Court of Appeal)

The appellate court agreed with the trial judge's decision to refuse cross-examination of the technician who signed the blood alcohol certificate because the arresting officer was available at the same times as the technician and could have answered any questions relating to the alleged delays between samples.

R. v. YURKO (1982) 15 MVR 163 (BC)

In this case, the request for leave to cross examine the technician who signed the blood alcohol certificate came as the trial began and was refused, ostensibly because it would occasion an adjournment. The decision was appealed and overturned. Leave should have been granted. The appellate court found that "there is no requirement that the application for leave be made prior to trial" and that "it is quite appropriate to make that application even as late as the time when the certificate is actually produced in evidence."

LAJEUNESSE v. JANSSENS (1983) 24 MVR 217 (Ontario Supreme Court)

Defendant C lends her car to her son with instructions not to let anybody else drive. The son lets defendant J drive who, with the son as passenger, has an accident. The provincial statutes captured C's liability as the vehicle was in the possession of the son at the time of the accident.

R. v. HEIT (1983) 21 MVR 95 (SK Court of Queen's Bench)

The license number of a car passing a stopped school bus (the latter with red lights flashing) was recorded and the owner, 29 days later, served with a violation ticket. When considering the matter of delay under s. 11(2) of the Charter, the courts start at the point when the authorities were in a position to commence proceedings. There was no explanation provided for the delay. "A delay of a month makes it difficult if not impossible for the owner of the vehicle to determine where the vehicle allegedly involved was, at the time of the offence" (see also The Queen v. Heydayat below).

PERKA v. R. (1984) 2 SCR 232

This case summarized the parameters of the common law defence of necessity. There must be urgency and "no legal way out" and courts will not "excuse the infliction of a greater harm to allow the actor to avert a lesser evil." "To be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law. The defence applies only in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril." Once the accused places before the court "sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt."

R. v. HARPER (1985) 35 MVR 134 (BC)

The accused tried to use the Charter to throw out a charge of speeding against posted speed limits because the absolute liability nature of these offences precluded the defence of "due diligence." Where the liberty of a person is in jeopardy by the scope of possible penalties or sentences of a particular offence, an apparent "absolute liability" offence may be "treated in a different manner." But that does not apply in this case: "the (BC) Motor Vehicle Act provides a demerit point system of punishing offenders rather than jail or fines. Their life, liberty or security are not endangered."

R. v. JEWITT (1985) 2 SCR 128

A trial judge has a residual discretion to stay proceedings where compelling accused to stand trial would violate "fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.... (T)his is a power which can only be exercised in the clearest of cases."

REFERENCE RE: S. 94(2) OF THE MOTOR VEHICLE ACT (BC) (1985) 2 SCR 486

This was a test case where a proposed BC law specifically provided for a absolute liability offense. The court decided that the imposition of absolute liability in penal law offends the principles of fundamental justice and will violate s. 7 of the Charter if it has the potential to deprive the subject of liberty. Imprisonment need not be a mandatory sentence or penalty for s. 7 of the Charter to apply (life, liberty and security of the person not to be deprived). Imprisonment includes probation orders. "Section 1 (of the Charter) may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like." The court added that absolute liability offences do not per se offend s. 7; only if they have the potential of depriving of life, liberty or security.

R. v. GRACE (1986) 47 MVR 284 (NS Supreme Court)

Highway speed limit signs are presumed to be proper government traffic signs erected in compliance with traffic legislation. This prima facie presumption can be rebutted "if the sign was not clearly visible or was defaced or altered or otherwise did not appear to be a current sign, properly authorized, erected and maintained or if it was shown to be erected by someone who had no authority (eg. a neighbour)."

R. v. OAKES (1986) 1 SCR 103

This case set the rules for trying to save sections of legislation under s. 1 of the Charter ("reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"). There are two criteria. First, the objective must be "pressing and substantial"; of "sufficient importance to warrant overriding a constitutional protected right or freedom." Secondly, the party invoking s. 1 must prove means are reasonable and demonstrably justified (on a balance of probabilities). This is a proportionality test; each case different but essentially (1) the measures are carefully designed to achieve the objective; (2) the means impairs "as little as possible" the right in question; and (3) the effects of the measures must be proportionate to the objective as well.

Sections 7 and 24 of the Charter does not apply to the process of the Crown tendering Superintendent of Motor Vehicle certificates under the provincial Motor Vehicle Act. To wit, there was no requirement to give advance notice.

R. v. BOE (1987) 49 MVR 32 (Saskatchewan QB)

The Court considered the section of the Criminal Code which not only allowed for evidence of blood alcohol content by certificate, but also provided for cross-examination of the technician "by leave of the court." In this case, the court declared that the cross-examination, of allowed, must be restricted to matters arising out of the certificate and, in this case, should not include asking the technician to relate any conversation he had with the accused during the blood alcohol testing.

R. v. BEARE (1987) 34 CCC (3d) 193

This case decided the approach in determining whether a section infringes s. 7 of the Charter ("everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"). Does the section impinge on the "right to life, liberty and security of the person"? If so is the impingement done "in accordance with the principles of fundamental justice"? If not, the section must be saved under s. 1 of the Charter ("reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society") or it is unconstitutional.

R. v. DOYLE (1988) 9 MVR (2d) 23

A section of a Nova Scotia traffic legislation provided for a presumption of criminal responsibility of the owner of a vehicle unless the owner shows that someone else was in possession of the vehicle and without the owner's consent. The court, applying R. v. Beare and R. v. Oakes (see above), said that "vicarious liability has no role in quasi-criminal statutes ... and is not in accordance with the principles of fundamental justice."

R. v. FREE (1990) 22 MVR (2d) 209

The Alberta Highway Traffic Act allowed liability of the owner of a vehicle identified, through photo radar, as speeding. This, according to the court, violated s. 11(d) of the Charter: to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal" and is not saved under s. 1 of the Charter.

R. v. HICKS (1991) 35 MVR (2d) 311

Nova Scotia's speeding offence is one of strict liability and the defences of reasonable mistake and due diligence are available. If it were of absolute liability, the section would offend s. 7 because of the automatic license suspensions which is a deprivation of the "security of the person" (i.e. it has the potential to disrupt the family, social life and work).

WALKER v. THE QUEEN (1991, BC Supreme Court)

The ticket served upon the defendant must give a physical location for delivery. In this case, a postal box number was not enough and the ticket a nullity (see also R. v. Yakubowich below).

R. v. GREENING (1991) 40 MVR (2d) 81

This is a curious case out of Newfoundland that decided that the Newfoundland speeding offence was one of absolute liability. Worse, the case confusingly comments on the defence of necessity in absolute liability offences stating that "the intention of the respondent, however innocent, would not justify his admitted act of driving his motor vehicle at a speed in excess of the legal limit" and then, later, suggesting that "even if the defence of necessity were open to the respondent, the burden of proof would lay upon him.".

R. v. CHOW (1991) 33 MVR (2d) 171

Evidence of past and consistent performance of the photo radar device is admissible (refer also to O'Reilly above).

R. v. YAKUBOWICH (Kamloops Provincial Court, March 1992)

The defendant, accused of a traffic violation, claims that the evidence of the ticket before the court is insufficient; that it is a certified copy which omits some of the elements which appear on the defendant's copy. In particular, the copy before the court omits the address for disputing the ticket. The court likened the ticket to the form of information in these types of proceedings and that, as information or indictments, they must meet minimal requirements "in and of themselves." Because the provincial Offence Act requires that violation tickets include "an address to which a notice disputing the allegation or fine may be delivered", the court declared the violation ticket a nullity.

R. v. WILLIAMS (1992) 39 MVR (2d) 315 (NS)

Applying Reference Re: S. 94(2) of the Motor Vehicle Act (BC), the Nova Scotia appeal court considered the section of the Nova Scotia Motor Vehicle Act which covered speeding offences and considered it to be one of strict liability. Therefore, according to the court, the defenses of due diligence and reasonable mistake were available.

THE QUEEN v. HEDAYAT (Calgary QB, October 1992)

Defendant received ticket in mail some 25 days after alleged offence and asked that the ticket be quashed citing R. v. Jewitt; that he was not served quickly enough to remember the day and time. The court disagreed and pointed out that the offense was one of speeding; that the defendant received a photograph of his vehicle allowing him to prepare a full defence. The delay was judged to be reasonable as there was no evidence of improper motive on the part of the Crown (they were somewhat overworked) and the defendant failed to meet the test set in Jewitt.

R. v. COOK (1994) 2 MVR (3d) 281

The defense challenges the photo radar device testing procedures (refer to O'Reilly above) because the frequency of the tuning fork used to calibrate the machine is not certified. While acknowledging the fallibility of tuning forks, the defence was rejected because of the 50 km/h difference between the speed limit and the reading; the ocular evidence of the officer that the vehicle as speeding; and other testings of the device. The prima facie case of the Crown is established.

R. v. ALLADINA (1994) 4 MVR (3d) 180

The defendant tried to interpret R. v. O'Reilly (see above) as requiring some formal government-approved testing of the radar devices. The court disagreed and also rejected the argument that a test three months after use is insufficient. Again, the court rejected this citing R. v. Chow (see above).

R. v. MORRIS (1994) 5 MVR 110

Appellant accelerated to avoid an accident and was ticketed for speeding. This case reiterated the principle that the defence of necessity (i.e. "I had to do it"), is available in speeding cases.

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.